No one knows yet if Gary Johnson received as many as 50,000 votes for President this month in New York state. The preliminary total for Johnson, gathered by the news media, is 42,452. However, the total on election night in New York state, as in most states, is far below what the final total will be. In 2010, New York city finished its official canvass on December 2, 2010, and the final results were 17% higher than the election night total.

The New York State Board of Elections did not release 2010 election returns until December 13, 2010, and chances are the 2012 results will not be known until mid-December 2012.

New York state defines “party” to be a group that polled 50,000 votes for Governor. When this definition was written, New York state elected its governor every two years. There is a plausible argument to be made that it is unconstitutional for a state to make it literally impossible for a group to become a “political party” at any point during a presidential election year. New York and Indiana are the only states in which a group cannot qualify as a “political party”, except on election day in mid-term years.

In 1980, the Libertarian Party polled 52,648 votes for President, and after the election was over, filed a lawsuit, alleging that it had shown enough voter support to qualify as a political party. However, the attorney who filed the lawsuit erroneously sued the New York Secretary of State, instead of the State Board of Elections, which was a fatal procedural flaw.

3 U.S. Code, section 6, is titled “Credentials of electors; transmission to Archivist of the United States and to Congress; public inspection.” The text of this law seems to require jurisdictions with electoral votes to count the write-in votes for all declared write-in presidential candidates, if that state’s write-in declaration procedure has provision for the write-in presidential candidate to also submit a list of presidential elector candidates.

Jurisdictions in which various minor party presidential candidates did file in 2012 for write-in status, and yet which in the past have refused to tally such write-ins, include Alaska, the District of Columbia, Oregon, Washington, and Wyoming. In Alaska this year, Virgil Goode filed for write-in status and included a slate of presidential elector candidates. Rocky Anderson did the same in the District of Columbia. It is believed that Jill Stein did the same thing in Wyoming.

The law says, “It shall be the duty of the executive of each State, as soon as practicable after the conclusion of the appointment of the electors in such State by the final ascertainment, under and in pursuance of the laws of such State providing for such ascertainment, to communicate by registered mail under the seal of such State to the Archivist of the United States a certificate of such ascertainment of the electors appointed, setting forth the names of such electors and the canvass or other ascertainment under the laws of such State of the number of votes given or cast for each person for whose appointment any and all votes have been given or cast.”

The Constitution Party intends to ask the Alaska Division of Elections to follow this law and to tally the number of write-ins cast for Virgil Goode, and the Justice Party had already made the same request to the District of Columbia Board of Elections.

Each state, and the District of Columbia, has its own law to determine the order of candidates on general election ballots. In 2012, there are eight jurisdictions in which a minor party presidential candidate appeared first on the ballot. Also there are nine states in which minor party presidential candidates appeared first on the ballot in some parts of the state.

The states in which a minor party presidential candidate appeared first on all ballots include five in which candidates are listed alphabetically. In Hawaii, Maine, and Massachusetts, Gary Johnson was listed first because his name came first in the alphabet, among all candidates who were on. In Nevada, Virgil Goode benefited from the same law. In Vermont, Rocky Anderson was first.

Colorado puts all major parties on the ballot in alphabetical order of party name, and the status of the Constitution Party, which is a major party because it polled over 10% for Governor in 2010, meant that Virgil Goode was listed first. It happens to be that the name of that party in Colorado is “American Constitution”, but the results would be the same if it were just “Constitution”, because “C” comes before “D” and “R.”

Utah and the District of Columbia use a random selection process to determine the order of names on the ballot, and Jill Stein was chosen to be first in both places. Oregon also uses that method, and President Obama benefited from that and was listed first.

States that rotate the order of candidates on the ballot, giving each ballot-listed candidate the top spot on some ballots, are Alaska, California, Idaho, Kansas, Montana, New Hampshire, North Dakota, and Ohio. Arkansas seems to give each county discretion over candidate order, and in some counties a minor party candidate was on top. South Carolina rotates the order of parties on the ballot from one election to the next, and it just happens that in 2012, it was the Democratic Party’s turn to be listed first on the ballot. Louisiana lists parties on the ballot alphabetically by party name, but of course that means the Democratic Party is always first, although the Green Party is second. South Dakota has a random selection but it happens that in 2012, the Democratic Party was first.

If anyone reading this can help me obtain a copy of a Delaware ballot, or a Hawaii ballot, please e-mail me at richardwinger@yahoo.com.

On November 6, it appears that seventeen independent candidates were elected to state legislatures. They include one in Georgia, four in Maine, one in Rhode Island, six in South Carolina, one in Tennessee, and four in Vermont.

The four in Vermont were Will Stevens, Paul Poirier, Adam Greshin, and Charles “Tim” Goodwin.

The one in Georgia was Rusty Kidd.

The winner in Tennessee was Kent Williams.

The winners in South Carolina were Katrina Shealy (State Senate); and Raye Felder, Samuel Rivers, Mike Ryhal, Robert Ridgeway, and Kevin Hardee.

The winner in Rhode Island was Edward J. O’Neill (State Senate).

The winners in Maine are Ben Chipman, James Campbell, Jeffrey Evangelos, and Joseph Brooks. Thanks to Peter Moody for help with the Maine list, and to Thomas Jones for the helpful referral to the web page of the National Conference of State Legislatures.

Summing up the November 2012 election, 8 minor party nominees and 17 independents won legislative races, for a total of 25, the largest such number since Ballot Access News has been in existence, and probably the highest such number since the 1940′s.

On November 6, the Vermont Progressive Party elected two State Senators and five Representatives. The winning State Senate candidates are David Zuckerman and Anthony Pollina. The winning Representative candidates are Christopher Pearson, Cindy Weed, Susan Hatch Davis, Mollie Burke, and Sandy Haas.

All seven of these candidates showed that they are Progressive Party members, by listing the Progressive Party first on the November ballot. Vermont permits two parties to jointly nominate the same candidate, and some of the Progressive Party winners were nominated by both the Progressive Party and the Democratic Party. Vermont doesn’t have registration by party. Therefore, the only objective way to know which party a particular fusion candidate belongs to is to see how the candidate chooses to be listed on the ballot.

In Vermont, when a candidate is nominated by two parties, voters can’t use their vote to show which party they prefer. The candidate only appears on the ballot once, so there is only one square on the ballot to vote for him or her. This is referred to as “aggregated fusion”. By contrast, the type of fusion used in New York, Connecticut, and South Carolina, which lets the voter choose the party, is “disaggregated fusion.”

On November 8, William P. Danielczyk asked the U.S. Supreme Court to rule that he should not be convicted of the crime of arranging for his corporation to make a campaign donation to a candidate for federal office. The U.S. District Court in his case had ruled that the federal law banning corporations from making contributions to federal candidates is unconstitutional. The 4th circuit had reversed the U.S. District Court, and upheld the law banning corporation contributions to federal candidates.

Danielczyk argues that the distinction between corporations making independent expenditures, versus making direct contributions, is not meaningful. The case is Danielczyk v U.S., 12-579. The federal government’s response brief is due December 10. Afterwards, the U.S. Supreme Court will decide whether it wants to hear this case. Thanks to Rick Hasen for this news.

On November 6, the Liberty Union Party of Vermont polled 13.4% for Secretary of State, its best statewide showing ever in its 42-year history. It has been on the ballot in all Vermont elections continuously starting in 1970. This year, its nominee for Secretary of State, Mary Alice Herbert, was the only candidate on the ballot against the incumbent Secretary of State, James C. Condos.

The party’s previous best showing for a statewide office had been 10.3%, for Treasurer, in 1978.

The only parties in any state, other than the Democratic and Republican Parties, who have been on the ballot continuously for a longer period are the New York Conservative Party (starting in 1962), and the American Independent Party of California (starting in 1968).

The Liberty Union Party usually chooses a presidential nominee from among the various presidential candidates of parties of the left. Its presidential nominees have been: 1972 Benjamin Spock (Peoples Party); 1976 no nominee; 1980 David McReynolds (Socialist Party); 1984 Dennis Serrette (New Alliance Party); 1988 Willa Kenoyer (Socialist Party); 1992 Lenora Fulani (New Alliance Party); 1996 Mary Cal Hollis (Socialist Party); 2000 David McReynolds (Socialist Party); 2004 John Parker (Workers World Party); 2008 Brian Moore (Socialist Party); 2012 Stewart Alexander (Socialist Party). The party was barred from the ballot for President in 2012 because of a new law that requires qualified minor parties to submit their presidential nominee no later than June, whereas qualified parties that nominate by primary have until September to make their choice.

Because Liberty Union polled over 5% for a statewide race in 2012, it will now has “major party” status again, and its own primary. It had last had that status after the 2006 election.

On November 9, a Democratic state representative in Kansas won a court order which will let her see the names of the approximately 150 people who cast provisional ballots in her district. The preliminary election returns show that she lost by 27 votes. However, there are provisional ballots that will be counted if the voter returns to the county elections office with certain information that the voter was unable to provide at the polls. The state legislator and her campaign want to contact those voters and assist them to validate their provisional ballots. See this story.

The Secretary of State and the elections officials resisted, because they believe it violates the privacy of those voters for anyone to know that they did, indeed, cast a provisional ballot.

On November 8, the South Carolina Democratic Party won a lawsuit against the Richland County Election Commission. As a result, all the votes in the county, which is the state’s second-most populous county, will be recounted. Furthermore, the recount will be conducted by workers from the two major parties, rather than county election employees. See this story. Not all of the many problems mentioned in the story can be cured with a recount, however, especially the problem that many precincts did not have the legally required number of voting machines.

Richland County contains Columbia, the state capital.

On November 9, the U.S. Supreme Court agreed to hear Shelby County, Alabama v Holder, 12-96, over whether section 5 of the federal Voting Rights Act is still constitutional. Section five is the part of the law that requires certain states and smaller jurisdictions to get approval from the U.S. Justice Department before changing any election law or practice.

The lower court, a 3-judge U.S. District Court in Washington, D.C., had ruled in favor of section 5.